Return to CALJIC Part 9-12 – Contents
F 12.46 n1 Firearm Concealed In Vehicle Controlled By Ex-Felon: Grave Danger As Justification. (PC 12025 & PC 12031)
A person may justifiably carry a concealed (PC 12025) or a loaded (PC 12031) firearm if the person “reasonably believes that he or she is in grave danger because of circumstances forming the basis of a current restraining order issued by a court against another person or persons who have been found to pose a threat to his or her life or safety.” This justification applies to PC 12025 through PC 12025.5. It applies to PC 12031 pursuant to subsection (j) of that statute. The statutes specifically require that the jury “shall determine whether the defendant was acting out of a reasonable belief that he or she was in grave danger.”
The statutes do not define the term “grave danger.” However, because the legislature did not use the same terminology utilized in the self-defense statutes, i.e., “imminent peril of death or great bodily injury” (See, e.g., PC 198.5 and PC 197) there is a basis for concluding that the legislature intended the term “grave” to provide a different standard than that utilized in the other self-defense statutes. (See Bunner v. Imperial Ins. Co. (86) 181 CA3d 14, 22 [225 CR 912].)
For example, it could be argued that “grave danger” applies to non-life threatening or great bodily harm. This is so since the weapon statutes deal with possession, not use. In other words, why does one need to fear serious harm, as distinguished from harm in general, in order to carry a weapon? Moreover, such an interpretation is consistent with the requirement that the prospective attacker “pose a threat to [the defendant’s] life or safety.” Certainly threats do not need to rise to the level of great bodily injury to jeopardize one’s “safety.”
It should also be noted that the new legislation contains no requirement that the danger be “imminent.” Nor is imminent reasonably contained within the definition of grave. Moreover, given the fact that the justification applies to the carrying of a firearm in preparation for some future danger, the lack of an imminent requirement is fully consistent with the legislative intent.
(See also FORECITE F 4.009a re: loaded weapon per PC 12031.)
F 12.46 n2 Weapon Must Be Concealed Within The Vehicle (PC 12025 & PC 12031).
When the weapon is in an vehicle, it must actually be concealed within that vehicle. (See People v. Commons (44) 64 CA2d Supp 925, 929; People v. Frost (32) 125 CA Supp 794, 795.) A gun which is found in plain view on the seat of the vehicle is not concealed within the meaning of the statute. (See People v. Cardwell UNPUBLISHED (F014847). [Copy available to FORECITE subscribers. Ask for Opinion Bank # O-105.]
RESEARCH NOTES: See Annotation, Offense of carrying concealed weapon as affected by manner of carrying or place of concealment, 43 ALR2d 492 and Later Case Service.
F 12.46 n3 Firearm Concealed In Vehicle Controlled By Ex-Felon: Definition Of “Control” (PC 12025 & PC 12031).
See Annotation, What amounts to “control” under state statute making it illegal for felon to have possession or control of firearm or other dangerous weapon, 66 ALR4th 1240 and Later Case Service.
F 12.46 n4 Definition of Loaded Firearm.
People v. Clark (96) 45 CA4th 1147, [53 CR2d 99] held that for purposes of PC 12031 and HS 11370.1 the commonly understood meaning of the term “loaded” should apply. Therefore, a firearm is “loaded” when a shell or cartridge has been placed into a position from which it can be fired. A shotgun is not “loaded” if the shell or cartridge is stored elsewhere and not yet placed in a firing position. This is so, even if the shells were placed in a separate storage compartment of the firearm. The same definition should be applicable to PC 626.9 which contains a definition of “loaded.” (See PC 626.9(j)) which is similar to the definition in PC 12031(g).)
F 12.46 n5 Ex-felon: Carrying Firearm — Applicability Of “Momentary Possession” Principles.
It is unclear whether the principles of “momentary possession” apply to a charge of possession of a firearm by an ex-felon in violation of PC 12021. (See FORECITE F 12.43 n9.) However, even if the principle is applicable to possession as charged in PC 12021, there is a separate question as to whether it applies to carrying of a firearm by an ex-felon under PC 12025 and PC 12031. People v. Hurtado (96) 47 CA4th 805, 814 [54 CR2d 853] concluded that the “momentary possession” principle should not be extended to charges relating to carrying. Nevertheless, if the firearm was unknowingly carried and immediately relinquished upon discovery, the principles of momentary possession should apply. (See FORECITE F 12.43a.)
F 12.46 n6 Carrying Concealed Firearm: Sufficiency Of Evidence Of Concealment.
PC 12025 proscribes the carrying of a concealed weapon on the person of the defendant. Only partial concealment of the firearm is required. (People v. Hale (74) 43 CA3d 353, 356 [117 CR 697].) However, to support a conviction for PC 12025, there must be evidence that the firearm was concealed upon the person. An officer’s inability to see a weapon in plain view is no substitute for proof of concealment. [An unpublished opinion on this issue is available to FORECITE subscribers, ask for Opinion Bank # O-221.]
F 12.46 n7 Right To Stipulate To Status As Convicted Felon Re: Carrying Concealed Firearm In Vehicle.
People v. Hall (98) 67 CA4th 128 [78 CR2d 809] held that the trial court erred in admitting evidence of a prior conviction and in instructing the jury that it was an element of the offense. In Hall the court concluded that a defendant’s status as a convicted felon is a sentencing factor and not an element of the crime.
F 12.46 n8 Carrying Of Firearm By Gang Member: All Elements Of Gang Offense Must Be Proven.
Carrying a loaded firearm in public does not becomes a felony under PC 12031(a)(2)(C) unless the prosecution proves the elements of the offense described in PC 186.22(a), i.e., “actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity” and “willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.” (People v. Robles (2000) 23 C4th 1106, 1115 [99 CR2d 120].)
F 12.46 n9 Improper To Apply Use (PC 120225.5(a)) And Great Bodily Injury (PC 12022.7(a)) Enhancement To Concealed Firearm Charge (PC 12025(a)(1)).
(See FORECITE F 12.41 n7.)
F 12.46a
Carrying Of Firearm By Ex-felon: Unintentional Possession.
*Add to CJ 12.46, CJ 12.46.1, CJ 12.47, CJ 12.47.1, CJ 12.54, CJ 16.460, CJ 16.470, or CJ 17.23 when appropriate:
When an ex-felon carries a firearm without knowing that [he][she] has the firearm, and [he][she] later learns that [he][she] has the firearm, [he][she] does not automatically violate [PC 12025] [PC 12031] upon acquiring knowledge of the weapon. The ex-felon violates the law only if [he][she] intentionally carries the weapon without taking immediate steps to relinquish possession of it.
Points and Authorities
As to whether the traditional rules relating to “momentary possession” of drugs apply to possession and/or carrying of a firearm by an ex-felon per PC 12021, PC 12025 and PC 12031, see FORECITE F 12.43 n9, F 12.43a.
However, even if the traditional principles of “momentary possession” do not apply, when the defendant’s temporary possession is unintentional — e.g., where unknowing possession is discovered — the defendant has a right to an instruction which informs the jury that unintentional temporary possession is not a violation of the statute. (People v. Jeffers (96) 41 CA4th 917, 924 [49 CR2d 86].) The same principle should apply to carrying of a firearm in violation of PC 12025 or PC 12031. The above instruction is adapted from the instruction requested in Jeffers, which the appellate court held that, though “flawed in some respects…, was a reasonable attempt to articulate a valid legal principle supported by the evidence.” (Jeffers, 41 CA4th at 925.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
